As the political battles heated up over who should replace Justice Antonin Scalia on the U.S. Supreme Court, lawyers familiar with North Carolina’s redistricting case and other high-profile lawsuits took time on Sunday to weigh what impact the conservative jurist’s death might have on their cases.
The case, which invalidated the state’s 1st and 12th congressional districts, is one that could see a different outcome now, legal analysts speculate.
Some analysts say Scalia’s death makes it much more likely that North Carolina’s March 15 primary elections will be delayed – at least for the congressional races.
Until a new justice is appointed – and U.S. Senate Majority Leader Mitch McConnell has promised a delay for anyone President Barack Obama nominates – there could be a succession of 4-to-4 vote standoffs among the remaining justices.
In such cases where there is a tie, the lower court ruling stands as if the high court had never heard the case.
But as has been proven often during the two weeks since the federal court ruling describing North Carolina’s 1st and 12th districts as racial gerrymanders, there are few simple answers with a redistricting case.
“The primaries could be delayed, especially if the court does not grant a stay,” said Rick Hasen, a law professor at the University of California-Irvine who writes about the laws of politics and politics of the law. “If the court does grant a stay, then the primaries won’t be delayed.”
The state filed a request last week, asking the country’s highest court to halt the impact of the three-judge panel’s ruling until a fuller appeal could be heard. The state’s attorneys argued that because absentee ballots had already been cast in the districts under scrutiny, changing the lines this late in the electoral process would confuse voters and create unfair results.
The challengers, who have a response due to Chief Justice John Roberts by 3 p.m. Tuesday, have argued that illegal elections in the gerrymandered districts have occurred twice already since the maps were drawn in 2011. They argued against further delay, and plan to submit further argument to that point on Tuesday.
“I’ve been predicting a stay from the Supreme Court of the District Court order, which would stop the current election (already begun with absentees) and have the state quickly redistrict and hold new elections with new district lines,” Hasen said in his blog, electionlawblog.org. “With Justice Scalia’s death, a stay is now less likely if the Court divides along liberal-conservative lines.”
Vanderbilt law professor Kareem Crayton and Duke University political scientist Kerry Haynie said the loss of one of the court’s conservative votes damages the hopes of GOP legislators that they can avoid the redistricting changes.
“That Justice Scalia has died before a decision on the appeal has been announced very likely means the General Assembly will be required to redraw new congressional districts and have them approved by the federal court before any election for Congress can take place in North Carolina,” said Haynie, an associate professor of political science and African and African-American Studies.
Legislators will hold a statewide series of public hearings on redistricting Monday. One of those will be at Central Piedmont Community College in Charlotte.
Sunday, the Mecklenburg GOP leaders urged party members to attend, saying Democrats were relying on the courts to block what they couldn’t stop at the ballot box.
Observer staff writer Mike Gordon contributed.